Plaintiff (Law Firm, Kim & Lee LLC, Attorneys Seo Han-chul et al., Counsel for the plaintiff-appellant)

Dasan Co., Ltd. and two others (Attorneys Lee Jong-soo et al., Counsel for the plaintiff-appellant)

June 29, 2011

Suwon District Court Decision 2009Gahap16700 Decided November 23, 2010

1. Revocation of a judgment of the first instance;

2. With respect to 3/5 shares out of 698.3 square meters, Dong-dong, Dong-dong, Dong-dong (number 1 omitted); ① Defendant Dasan Incorporated Corporation shall register the provisional registration of the right to claim the transfer of ownership, which was completed on November 11, 2009 on the 9011 registry office of Sungwon District Court, and the right to claim the transfer of ownership, which was completed on November 27, 2009 on the 94751 of the same registry office; ② Defendant 2 (Defendant 1 of the Supreme Court judgment) shall register the establishment of a neighboring mortgage completed on November 11, 2009 on the 90109 registry office of Sungwon District Court, Sungwon District Court, Sungnam District Court, and ③ Defendant 3 (Defendant 2 of the Supreme Court judgment) shall accept the registration of the establishment of a mortgage on November 30, 2009 and the registration of the establishment of a mortgage on the 9509 registry office, respectively, as the registration office of Suwon District Court.

3. The costs of litigation between the Plaintiff and the Defendants are borne by the Defendants.

[Claim]

1. The primary purport of the claim

Paragraph 2 of this Article.

2. Preliminary purport of claim

A. As to the size of 698.3 square meters in the Dong-dong, Dong-dong, Seonam-si, Sungnam-si (number 1 omitted), ① the exchange reservation agreement concluded on November 4, 2009 between Defendant Csan Incorporated Co., Ltd. and Co-Defendant 4 of the first instance trial (the Nonparty of the judgment of the Supreme Court), and ② the Defendant Csan Incorporated Co., Ltd., Ltd., completed on November 11, 2009 by the registration office of Suwon District Court (the Nonparty of the judgment of the Supreme Court), will implement the procedure for the registration of cancellation of the right to claim transfer of ownership, which was completed as of November 11, 2009 by the registration office

B. In relation to the share of 3/5 square meters in the area of 698.3 square meters in the area of the Gu, Seo-gu, Seo-gu, Chungcheongnam-si, Sungnam-si, Masan-si, and ① the exchange contract concluded on November 26, 2009 between the Defendant Incorporated Incorporated Co., Ltd. and the Co-Defendant 4 of the first instance trial, and ② the Defendant Incorporated Co-Defendant Dasan-si, which completed on November 27, 2009 by the registration office of Suwon-si branch of the Suwon District Court in the first instance trial as of November 27, 2009, will implement the procedure for the cancellation of the registration of ownership transfer.

C. As to the size of 698.3 square meters in the Dong-dong, Seonam-gu, Sungnam-si (number 1 omitted), ① revoked the mortgage contract concluded on November 11, 2009 between Defendant 2 and co-defendant 4 of the first instance trial, and ② Defendant 2 performed the procedure for registration of cancellation of the registration of the establishment of a neighboring mortgage completed on November 11, 2009 by the Sungwon District Court’s Sung-nam Branch of the Sungwon District Court’s Sung-gu Branch of the Sungwon District Court’s Sung-nam Branch of the Seoul District Court’s 4 co-defendant 4.

D. With respect to the share of 3/5 square meters among 698.3 square meters, Dong-dong, Dong-dong (number 1 omitted), Sungnam-si, and Defendant 3 implemented the procedure for registration of cancellation of each registration of the establishment of neighboring mortgage completed as of November 30, 2009 by the 95290 registry office, which was completed as of November 30, 2009, and the provisional registration of the right to claim for ownership transfer registration, which was completed as of November 30, 2009 by the 95289 registry office (the plaintiff added the preliminary claim at the trial).

【Purpose of Appeal】

The judgment of the first instance shall be revoked, and the judgment shall be sought as referred to in paragraph (2).

1. Basic facts

A. The ownership of the land of this case and the decision of compulsory adjustment of this case

(1) The land of this case was owned by the Plaintiff. On August 16, 2007, on the ground of the division of property on January 12, 2007, the joint Defendant 4 of the first instance trial co-defendant 4 (hereinafter “joint Defendant 4 of the first instance trial”), the ownership transfer registration was made under the name of the co-defendant 4 of the first instance trial on the ground that the share of 2/5 out of the instant land was divided.

(2) On February 12, 2008, Co-Defendant 4 filed a lawsuit against the Plaintiff for partition of co-defendant 4 of the first instance trial against the Plaintiff, and on September 30, 2008, the Suwon District Court rendered a decision in lieu of conciliation as follows (hereinafter “instant compulsory conciliation decision”). The instant compulsory conciliation decision was delivered to the Plaintiff and Co-Defendant 4 of the first instance trial on October 8, 2008, respectively, and was finalized on October 23, 2008.

1. If the co-defendant 4 of the first instance trial entered into a contract to sell to a third party the share of Co-defendant 4 of the first instance trial among the instant land by January 31, 2009, in KRW 38,000,000 per square day, the Plaintiff also sells the share of the Plaintiff among the instant land to the same person on the same condition.

2. If any of the plaintiffs and co-defendant 4 of the first instance trial co-defendant 4 fails to comply with paragraph 1, the co-defendant 4 of the first instance trial shall purchase the plaintiff's share in the land of this case from the plaintiff at the price set forth

3. The method of performing the sales contract under paragraph (2).

A. On January 31, 2009, Co-Defendant 4 of the first instance trial paid the amount under Paragraph 2 to the Plaintiff at the same time after having received the registration of ownership transfer from the Plaintiff for 3/5 shares out of the instant land. However, even if the Plaintiff provided the above documents to Co-Defendant 4 of the first instance trial, if the Co-Defendant 4 of the first instance trial delays the payment of the said amount, the damages for delay shall be paid in addition to 20% per annum.

B. At the same time, the Plaintiff received the amount of paragraph (a) from co-defendant 4 of the first instance trial, and simultaneously implemented the registration procedure for transfer of ownership to co-defendant 4 of the first instance trial.

4. Where a co-defendant 4 of the first instance trial concludes a sales contract under paragraph (1) and submits it to the Plaintiff, the Plaintiff shall remove a model house on the ground of the instant land by January 15, 2009.

5. The co-defendant 4 of the first instance trial waives the remainder of the claims.

6. The costs of lawsuit and mediation shall be borne by each person.

B. The issuance of the execution clause of this case and the registration of this case

(1) On October 23, 2008, the date on which the compulsory adjustment order of this case became final and conclusive by Nonparty 2, Co-Defendant 4 of the first instance court, applied for the certification of delivery and confirmation of the compulsory adjustment order of this case on October 23, 2008, and applied for the issuance of the execution clause, and Defendant 4 of the first instance court did not pay the amount stated in Article 3-A of the compulsory adjustment order of this case to the Plaintiff and did not order the presiding judge, but on October 23, 2008, Nonparty 3 of the Suwon District Court, Sungwon-nam Branch Branch of the first instance court and the Plaintiff issued the execution clause of this case to the co-defendant 4 of the first instance court and the Plaintiff with the statement that “the execution clause of this case was delivered to the co-defendant 4 of the first instance court to implement compulsory execution against the Plaintiff” in addition to the original copy of the compulsory adjustment decision of this case (hereinafter “the execution clause of this case”).

(2) On the basis of the instant decision on compulsory conciliation that was granted the instant execution clause on November 11, 2009, Co-Defendant 4 of the first instance trial, based on the instant decision on compulsory conciliation, filed a registration of entire Plaintiff’s share transfer (hereinafter “registration”) in the name of Co-Defendant 4 of the first instance trial, on the ground of a co-defendant 4 of the first instance court’s co-defendant 4, on October 23, 2008, on the ground of a partition of co-defendant 3/5 shares among the instant land as to the Plaintiff’s share in the instant case.

C. The case (2) through (6) where the registration of this case was completed in the future of the defendants, based on the registration of this case

(1) On November 1, 2009, the joint Defendant Dasan Co., Ltd. (hereinafter “Defendant Dasan”) registered the shares unique to Defendant 4 in the first instance trial, and ① on the basis of the registration of this case, on November 4, 2009, the provisional registration authority was appointed as Defendant Dasan on the ground of exchange reservation (hereinafter “instant registration”). On November 27, 2009, under Article 94751 of the same registry office, on November 27, 2009, the provisional registration authority for the right to claim ownership transfer (hereinafter “instant registration”). On November 26, 2009, Defendant Dasan Co., Ltd. (hereinafter “Defendant Dasan”) registered part of ownership transfer (hereinafter “instant registration”) in the name of Defendant Dasan on the ground of the exchange on November 26, 2009.

(2) In addition, on November 11, 2009, Defendant 2 completed the registration of the joint Defendant 4 of the first instance trial and the registration of the instant land based on the registration ① by the joint Defendant 4 of the first instance trial, the joint Defendant 4 of the first instance trial, the maximum debt amount of which is KRW 325,00,000, and the registration of the establishment of a collateral security (hereinafter “registration”).

(3) As to the 3/5 portion of the instant land registered in the name of Defendant Dasan by the registration of this case, Defendant 3, as the creditor of Defendant Dasan, filed a provisional registration on November 30, 2009 with the person holding the provisional registration on the ground of trade reservation on November 30, 2009 (hereinafter “instant registration”) with Defendant 3, and completed the provisional registration of the right to claim the transfer of the entire shares of Defendant Dasan (hereinafter “instant registration”), under Article 95289 of the same registry office on November 30, 2009, under Article 95289 of the same registry office (hereinafter “instant registration”). The registration of the establishment of the entire ownership ownership of Defendant 3 as the mortgagee’s collective security interest (hereinafter “instant registration”).

D. Formation of reconciliation between the Plaintiff and the co-defendant 4 in the first instance trial

On December 16, 2009, the Plaintiff filed a lawsuit with co-defendant 4 of the first instance court and the Defendants on the share of 3/5 of the instant land (hereinafter “the instant reconciliation”) with the Suwon District Court in order to seek the procedure for registration cancellation of the instant registration: (a) On May 25, 2010, co-defendant 4 of the first instance court filed a settlement with the Plaintiff (hereinafter “the instant settlement”) to implement the procedure for registration cancellation of the instant registration between Co-Defendant 4 of the first instance court and Co-Defendant 4 of the first instance court during the proceeding of the instant lawsuit.

[Basis] Facts without dispute, Gap's evidence 1 through 5, 7, Gap's evidence 6-1, 2, Gap's evidence 8-1 through 7, Eul's evidence 8-12, 13, and 14, and the purport of the whole pleadings

2. Judgment as to the plaintiff's primary claim

A. Determination as to the invalidity of the cause of registration (1)

According to the above, upon January 31, 2009, pursuant to paragraphs (2) and (3) of the instant compulsory adjustment decision, the Plaintiff and co-defendant 4 of the first instance court established a sales contract of KRW 38,000,00 per square year with respect to the Plaintiff’s share, which is 3/5 of the instant land, among co-defendant 4 of the first instance court (hereinafter “instant sales contract”), and the Plaintiff and co-defendant 4 of the first instance court bear the Plaintiff’s duty of transfer of ownership and the obligation of payment of the purchase price under the conditions of simultaneous performance.

However, in a case where there is no objection in lieu of conciliation or an objection is confirmed to be withdrawn or dismissed, the conciliation obligee may enforce compulsory execution by a decision in lieu of conciliation. On the other hand, in a case where the content of the obligation of the conciliation obligor is the obligation to state his/her intention like the implementation of the procedure for transfer of ownership, the conciliation obligee is deemed to have made a statement in lieu of conciliation. However, in a case where the above intention’s statement bears conditions such as the performance of counter-performance, etc., if the conciliation obligee submits documents proving the fulfillment of the above conditions to the court keeping the records of the above compulsory conciliation case, etc., the above opinion’s statement becomes effective when the execution clause is granted to the original copy of the decision in lieu of conciliation after going through prescribed procedures (see Articles 263(2), 30,

Therefore, in order for Co-Defendant 4 of the first instance court to complete the procedure for ownership transfer registration with respect to the Plaintiff’s share, which is 3/5 of the instant land among the instant land according to the compulsory adjustment decision, the execution clause should be granted by proving that he/she has performed his/her obligation to pay the money as stated in paragraph 3-A (a) of the instant compulsory adjustment decision. As seen earlier, Co-Defendant 4 of the first instance court did not fully pay the money as stated in paragraph 3-A (a) of the instant compulsory adjustment decision to the Plaintiff. Thus, the granting of the instant execution clause issued even if he/she failed to perform the said obligation to Co-Defendant 4 of the first instance court’s co-defendant 4, even if he/she did not perform the said obligation, is null and void. Accordingly, the instant execution clause does not have any effect of the Plaintiff’s statement on the transfer of the Plaintiff’s share, which is 3/5 of the instant land, and eventually, the joint Defendant 4 of the first instance court was made in the name on the ground of the instant compulsory adjustment decision.

B. Determination as to the Plaintiff’s primary claim against the Defendants

Therefore, the registration of this case in the name of co-defendant 4 of the court of first instance with respect to the Plaintiff’s share, which is 3/5 shares in the land of this case, is null and void based on the execution clause of this case, and thus, the cause of this case, which is null and void, shall be revoked by the compromise of this case. The cause of this case ① is null and void, and both the case ② to 6, in the name of the Defendants with respect to the 3/5 shares in the land of this case, among the land of this case, which was completed based on the above registration, are null and void. Thus, the Defendants are liable to implement the registration procedure for cancellation of

3. Judgment on the defendants' assertion

A. Determination as to the assertion that the decision of compulsory adjustment of this case is unfair and invalid

The Defendants expressed in advance the intention that the Plaintiff would complete the registration of ownership transfer on the premise of the establishment of the above sales contract and the delayed payment on the premise that the Plaintiff demanded the joint Defendant 4 of the first instance court to pay the purchase price and the delayed payment on the premise that it would be unfair for the Codefendant 4 of the first instance court to bring damages for delay only for the obligation to pay the purchase price. Thus, it is also null and void for the Plaintiff to simultaneously pay the Plaintiff’s obligation to transfer ownership and the obligation to pay the purchase price pursuant to the instant sales contract.

On or after January 31, 2009 pursuant to paragraphs (2) and (3) of the instant compulsory adjustment decision, the Plaintiff and the joint Defendant 4 of the first instance trial established the instant contract between the Plaintiff and the joint Defendant 4, and the Plaintiff and the joint Defendant 4 of the first instance trial shall bear the obligation to transfer ownership and to pay the purchase price concurrently. However, the joint Defendant 4 of the first instance trial bears the obligation to pay the above purchase price and damages for delay after being provided with the documents for ownership transfer registration from the Plaintiff. However, according to the instant compulsory adjustment decision, the joint Defendant 4 of the first instance trial submitted to the court documents attesting that the above purchase price was paid directly to the Plaintiff by means of delivery or deposit of the above purchase price after February 1, 2009, and thus, if the execution clause was legally granted, the Plaintiff’s joint Defendant 4 did not have the obligation to pay the above purchase price to the said joint Defendant 4 without cooperation of the Plaintiff at any time. On the other hand, even if the Plaintiff’s joint Defendant 4 did not provide all necessary documents for the registration of ownership transfer to the Plaintiff.

B. Determination as to the assertion that separate procedures for nullifying the execution clause should be prior to the conclusion

Even if there is any defect in the procedures for granting the execution clause of this case, the Defendants’ assertion that the registration of this case is still valid on the following grounds: (a) the cancellation of the execution clause or the refusal of the compulsory execution thereof cannot be deemed as null and void as a matter of course solely based on the above circumstances, regardless of the filing of an objection against the granting of the execution clause or a lawsuit of objection against the granting of the execution clause prior to the execution; (b) the Plaintiff filed the instant lawsuit immediately without going through the procedures, such as seeking the cancellation of such execution clause.

On the other hand, the content of the obligation subject to compulsory execution is the obligation to make a statement of the doctor. In the case where conditions such as performance of consideration are attached to the above doctor's statement, the effect of the above opinion arises only when the execution clause is granted by submitting documents proving the fulfillment of the above conditions (Article 263 (2) of the Civil Execution Act). Thus, the execution clause of this case issued even though the condition of performance of consideration (payment of purchase price by co-defendant 4 of the first instance trial) is not fulfilled as in this case is invalid even though the above condition is not fulfilled as in the above case. Meanwhile, in the case where the content of the obligation subject to compulsory execution is the obligation to make a statement of the doctor, the effect of the declaration of intention becomes effective if the execution clause is already issued, and the issue of enforcement is no separate after the execution clause is issued. Thus, the debtor of the obligation subject to the already issued doctor's statement is no longer possible, and there is no reason to assert that the declaration of intention is invalid or nonexistent by granting the execution clause, or to seek cancellation or recovery of registration immediately.

C. Determination on the assertion that the defect in the execution clause was cured

Even if there is any defect in the procedure for granting the instant execution clause, the Defendants asserted to the effect that the defect in the instant execution clause was completely cured since the Plaintiff was aware of the fact that the instant execution clause was issued, around March 18, 2009, before the registration was completed. However, there is no evidence to prove that the Plaintiff was aware of the fact that the instant execution clause was issued on or around March 18, 2009. Furthermore, even if the Plaintiff was aware of such defect, as long as the construction clause issued without the fulfillment of the condition to order the doctor’s statement on the condition of the performance of the opposite obligation was invalid, the defect does not have any nature that can be cured solely on the basis that the Defendants alleged by the Defendants.

D. Determination as to the assertion that the instant lawsuit violates the good faith principle and constitutes abuse of rights

The Defendants asserted that: (a) the Plaintiff’s filing of the instant lawsuit, claiming invalidation of registration, is against the good faith principle and constitutes an abuse of rights, on the grounds that: (b) the Plaintiff committed a tort obstructing the sale of the instant land by co-defendant 4 in the first instance trial by either executing provisional disposition and provisional attachment against the co-defendant 4 in the first instance trial, and refusing to receive the purchase price from co-defendant 4 in the first instance trial; and (c) the Plaintiff’s filing of the instant lawsuit, claiming invalidation of registration, is contrary to the good faith and constitutes

However, the evidence submitted by the Defendants alone is insufficient to recognize that the Plaintiff refused to receive the above purchase price despite the Plaintiff’s lawful provision of the purchase price under the instant sales contract. According to the above evidence, the Plaintiff’s joint Defendant 4’s inherent shares in the first instance trial, which are 2/5 shares out of the instant land, as the right to claim a partition of co-defendant 4’s co-defendant’s co-defendant’s co-defendant’s share as preserved right, was cancelled on March 18, 2009, and the terms and conditions of the provisional attachment on February 18, 2009 were 4,826,000 won and completed the provisional attachment registration on KRW 40,00,000, and thus, it cannot be viewed that the Plaintiff’s joint Defendant 4’s inherent share in the instant case’s provisional attachment and provisional attachment were invalid for the reason that the Defendants’ joint Defendant 4’s inherent share in the first instance trial did not constitute an abuse of rights.

E. Determination as to the assertion that the Defendants’ registration part based on Defendant 4’s own shares in the first instance trial is valid

Defendant Csan and Defendant 3, even if the registration of this case was null and void, separately owned the shares of Codefendant 4 in the first instance trial corresponding to the shares of 2/5 out of the original land, even if the registration of this case was made with respect to the shares of 3/5 out of the land of this case from the Plaintiff to Codefendant 4 of the first instance trial, and Defendant Csan decided to purchase all of the land of this case from Codefendant 4 of the first instance trial, who had completed the registration of ownership transfer with respect to the whole land of this case by the registration of this case ①. Defendant Csan, among the land of this case, for which Codefendant 4 of the first instance trial had completed the registration of ownership transfer with respect to the shares of 3/5 out of the land of this case, including the shares of Codefendant 4 of the first instance trial equivalent to the shares of 2/5 out of the land of this case, so even if the registration of this case with respect to the shares of this case is null and void, Defendant Csan and Defendant 3 were to be valid.

(2) The grounds for the registration of this case are pursuant to the agreement on November 4, 2009, and part of the 3/5 of the land in this case were exchanged on November 26, 2009. The facts that the grounds for the registration of this case were exchanged on November 26, 2009 are as follows. According to the evidence No. 16, the co-defendant 4 of the first instance court and the defendant Csan did not have to purchase all of the land in this case from Co-defendant 4 of the first instance court, and there is no evidence to prove that the above shares were to be purchased by the Co-defendant 4 of the first instance court, and the above shares were not registered by the Co-defendant 1 of the first instance court. 3 of the first instance court. The co-defendant 4 of the second instance court did not have to be registered on November 4, 2009. The co-defendant 1 of the second instance court's order to transfer the ownership of the land in this case to Dasan on the ground that they were not registered on May 111, 20,

F. Determination as to the assertion that Defendant 2 is bona fide

Even if there is a defect in the procedure for granting the execution clause of this case, Defendant 2 did not know such circumstance, so the registration of this case 4 with respect to shares 3/5 out of the land of this case is asserted as valid. However, as long as the cause is null and void as it is based on the execution clause of this case, in which the execution title ordering a doctor's statement on the condition that the registration of this case is performed on the condition that the opposite obligation is performed, and is issued without any fulfillment of the condition, it is based on the execution clause of this case, regardless of the good faith or bad faith of Defendant 2, the registration of this case 4 out of the land of this case as to shares 3/5 is null

4. Conclusion

Therefore, the plaintiff's primary claim against the defendants is justified, and the judgment of the court of first instance which has different conclusions is unfair, so it is revoked, and it is so decided as per Disposition by ordering the defendants to implement the above cancellation registration procedure.

Judges Park Jong-nam (Presiding Judge)